Disconnected by Design: The Constitutional Void in India’s Internet Shutdown Regime and the Case for Recognising Internet Access as an Independent Fundamental Right

Abstract

India recorded 84 internet shutdowns in 2024 — the highest among all democratic nations — yet the Supreme Court’s ruling in Anuradha Bhasin v. Union of India (2020) has failed to stem the tide. This article argues that the root cause is constitutional: the Court’s refusal to recognise internet access as an independent fundamental right, rather than a derivative of Article 19, has created a structural gap the executive routinely exploits. Drawing on constitutional jurisprudence, the Telecommunications Act, 2023, comparative frameworks, and international human rights law, this article makes the case for recognising internet access as a positive fundamental right under Article 21.

I. Introduction

India presents a striking paradox: one of the world’s most ambitious digital public infrastructures — the India Stack, UPI, DigiLocker — co-exists with a government that shuts down the internet more frequently than any other democracy. Since 2010, India has recorded over 847 internet suspensions.[1] In 2024, its 84 shutdowns were exceeded only by Myanmar, a military dictatorship. The consequences are tangible: students barred from online examinations, journalists unable to file reports, patients cut off from telemedicine, daily-wage workers losing gig-platform income. In 2020 alone, 129 shutdowns caused estimated economic losses exceeding USD 2.8 billion.[2]

Despite the Supreme Court’s intervention in Anuradha Bhasin v. Union of India (2020), shutdowns have not abated. This article argues that the persistence reflects a specific constitutional gap: the Court’s refusal to recognise internet access as an independent fundamental right. Parts II and III examine the existing constitutional and legislative frameworks. Part IV develops the Article 21 argument. Part V draws on comparative jurisprudence. Part VI proposes reforms. Part VII concludes.

II. The Constitutional Status of Internet Access: A Derivative Right in Search of an Independent Identity

A. The Anuradha Bhasin Framework

The foundational constitutional statement on internet access in India was made in Anuradha Bhasin v. Union of India.[3] The case arose from the communication blackout in Jammu and Kashmir on 4 August 2019 following the abrogation of Article 370. The Supreme Court held that freedom of speech and expression through the internet is protected under Article 19(1)(a), extended protection to internet-based trade under Article 19(1)(g), and applied the proportionality doctrine to shutdown orders — requiring that any restriction pursue a legitimate aim, adopt the least restrictive means, and be temporally and geographically tailored.

However, the Court declined to declare internet access a fundamental right in itself, citing the narrow ground that no party had specifically sought such a declaration. This restraint, as scholars have observed, was not compelled by doctrine — it was a deliberate choice with lasting consequences.[4] It left in place a constitutional architecture that treats internet access as instrumental rather than intrinsic, activating protection only when another Article 19 right is at stake.

B. The Problem with the Derivative Model

Treating internet access as a derivative right — one that only activates to protect the exercise of pre-existing rights under Article 19 — creates serious constitutional weaknesses. First, the scope of protection is inherently incomplete. If internet access is only protected insofar as it enables Article 19 rights, then activities outside those sub-clauses remain unprotected. Access to online healthcare platforms, government welfare portals, and digital banking services may not fit neatly within ‘freedom of expression’ or ‘freedom to carry on trade.’ A patient in Manipur who cannot reach a doctor because of a shutdown suffers a harm that the current framework barely acknowledges.

Second, the derivative model places the burden of proof in the wrong place. Because internet access lacks the status of a primary right, courts have been reluctant to demand robust justification from the state at the threshold. The review mechanism established under Anuradha Bhasin — requiring periodic assessment of shutdown orders — has been substantially ignored. In a revealing incident, the State of Meghalaya reportedly disclosed in an RTI reply that it was unaware of the Anuradha Bhasin judgment even eight months after it was delivered.[5] The derivative status of the right contributes directly to this impunity.

C. The Kerala High Court’s Bolder Vision

In Faheema Shirin R.K. v. State of Kerala (2019),[6] the Kerala High Court held that access to the internet is a fundamental right under Article 21, striking down a hostel rule barring students from online access. The judgment connected internet access to both the state’s negative duty not to interfere and its positive obligation to facilitate education and information access. The Supreme Court in Anuradha Bhasin bypassed this reasoning without engagement — a missed opportunity that continues to cost citizens their constitutional protection.

III. The Legislative Framework: A Colonial Architecture Dressed in Modern Garb

A. From the Telegraph Act to the Telecommunications Act

The authority to shut down internet services in India traces its origins to Section 5(2) of the Indian Telegraph Act, 1885 — a colonial statute enacted to give the British Crown power to intercept and suspend telegraph communications during ‘public emergency’ or in the ‘interest of public safety.’ It was only in the era of mass internet penetration that the executive discovered its utility as an instrument of digital control. The Temporary Suspension of Telecom Services Rules, 2017 were introduced as a procedural overlay following judicial pressure, requiring shutdown orders to be issued only by senior Home Secretaries and reviewed every 15 days. Implementation was persistently circumvented: district magistrates continued issuing orders under Section 144 CrPC without following the Rules, and Review Committee proceedings remained confidential.

The Telecommunications Act, 2023 was an opportunity for genuine reform. Civil society organisations had called for judicial oversight, mandatory public disclosure, sunset clauses, and codified proportionality standards. What emerged disappointed on every count. Section 20(2)[7] retains the government’s power to suspend services in the interest of ‘public safety’ and ‘public emergency,’ without defining either term. The Telecommunications (Temporary Suspension of Services) Rules, 2024[8] introduced a 15-day cap on suspension duration — easily circumvented through successive renewals, as demonstrated during the 213-day internet blackout in Jammu and Kashmir between August 2019 and January 2020.

B. The Structural Deficit: No Independent Oversight

The most glaring deficiency in the current framework is the absence of any independent oversight. The Review Committee under both the 2017 Rules and the 2024 Rules is composed entirely of senior executive officers from the same departments that issue the shutdown orders — this is the executive reviewing itself. The Supreme Court’s 2024 direction that Review Committee orders in Jammu and Kashmir must be published[9] acknowledged the transparency deficit, but publication of decisions made by a structurally compromised body provides accountability in form only. Without genuine independence, disclosure changes nothing of substance.

IV. The Normative Case for Internet Access as a Positive Fundamental Right under Article 21

A. The Positive Rights Tradition under Article 21

The Supreme Court has spent four decades constructing positive rights under Article 21 — the right to education in Unni Krishnan (1993),[10] the right to health in Paschim Banga (1996),[11] and most recently the right to privacy in Puttaswamy (2017).[12] In 2024, the Court reaffirmed that Article 21 includes the right to live with dignity, encompassing meaningful participation in social and civic life.[13] If the internet has become as integral to dignified existence in 2025 as food and shelter, the doctrinal path to recognising internet access as a right under Article 21 is already laid.

B. The Structural Argument: Why Derivative Status Is Insufficient

A derivative right activates protection only when another Article 19 right is at stake. It imposes no positive obligation on the state to ensure universal connectivity or prioritise digital inclusion. Recognition as a primary right under Article 21 — modelled on Article 21-A — would impose an affirmative duty to progressively realise universal internet access, ensuring that rural populations, women, Dalits, and tribal communities are not structurally excluded from digital civic life. It would also shift the burden of justification for shutdowns from the relatively low threshold applicable to derivative rights to a compelling-interest standard — transforming shutdowns from a routine administrative tool into a constitutionally scrutinised last resort.

C. The Puttaswamy Foundation

Justice D.Y. Chandrachud’s concurring opinion in Puttaswamy acknowledged that informational self-determination — the right to access and control information — is inseparable from personal liberty and dignity. An internet shutdown is a compelled informational isolation, severing individuals from public knowledge, civic participation, and personal communication. Under Puttaswamy‘s logic, this is as much an attack on privacy and personal liberty as the unauthorised collection of personal data. If the Court could constitutionalise privacy — a right not mentioned in Part III — through purposive interpretation of Article 21, the same architecture applies to internet access with equal force.

V. Comparative Perspectives: What India Can Learn from International Jurisprudence

A. Estonia, Finland, and the Nordic Model

Estonia declared internet access a fundamental human right as early as 2000, embedding it in telecommunications law and progressively extending broadband infrastructure to rural areas. Estonian citizens can vote, pay taxes, access medical records, and register businesses entirely online — backed by a legal framework with constitutional standing. Finland went further, codifying a right to broadband access in its Communications Market Act, obligating providers to ensure a minimum connection speed for every citizen. These Nordic models treat digital access as part of the welfare state’s affirmative obligations — a normative commitment India has yet to approximate even at the policy level, let alone the constitutional one.

B. The United Nations Human Rights Council and the ECtHR

In 2016 and 2021, the UN Human Rights Council adopted resolutions[14] affirming that rights people enjoy offline must be equally protected online, and expressly identified internet shutdowns as tools used to suppress democratic expression, peaceful protest, and independent journalism. While UNHRC resolutions are not legally binding on India, the Supreme Court has — since Vishaka v. State of Rajasthan (1997)[15] — acknowledged that international human rights norms can inform fundamental rights where domestic law is silent. The European Court of Human Rights reinforced this trajectory in Yildirim v. Turkey (2012),[16] holding that sweeping internet bans violate Article 10 of the ECHR unless they are prescribed by law with sufficient precision, serve a pressing social need, and go no further than strictly necessary. India’s proportionality doctrine, as articulated in Anuradha Bhasin, borrowed from European constitutional law but stopped well short of the rigorous application that European courts routinely employ.

VI. A Reform Agenda: Legislative and Constitutional Proposals

A. Judicial Recognition: The Immediate Step

The most immediately achievable reform does not require parliamentary action. The Supreme Court can, in an appropriate case, declare internet access a fundamental right under Article 21, drawing on the Puttaswamy foundation, the Kerala High Court’s reasoning in Faheema Shirin, and the rich body of socio-economic rights jurisprudence developed over four decades. A challenge to the constitutionality of the Telecommunications Act, 2023’s suspension provisions — on the grounds that they violate Articles 19 and 21 by vesting unguided discretion in the executive without independent oversight — would be the appropriate vehicle. Given the frequency of shutdowns and their documented human rights and economic impact, establishing the factual foundation for such a challenge presents no difficulty.

B. Legislative Reforms: A Shutdown Authorisation Framework

Parliament should amend the Telecommunications Act, 2023 to incorporate the following minimum safeguards:

1. Prior Judicial Authorisation: Judicial approval should be required before any internet suspension, except in genuine emergencies under 24 hours where ex post ratification is obtained within that period.

2. Independent Statutory Review Body: A body analogous to the Information Commissioner should be constituted to assess all shutdown orders against a codified proportionality standard, replacing the current arrangement of executive officers reviewing their own decisions.

3. Evidence-Based Justification: Shutdown orders must provide specific, evidence-based justification and cannot rely on vague formulations such as ‘public safety’ without factual particulars.

4. Mandatory Impact Assessments: Each shutdown must be accompanied by documentation of its economic cost, disruption to healthcare and education access, and measurable effectiveness. The Department of Telecommunications’ admission that it has never conducted such a study is itself a constitutional concern — a government exercising far-reaching powers over fundamental rights without measuring their consequences is a government operating in a vacuum.

C. A Constitutional Amendment: Article 21-B

In the longer term, a constitutional amendment inserting an Article 21-B — modelled on Article 21-A’s guarantee of the right to education — could provide a durable textual foundation: ‘The State shall ensure free and universal access to the internet for all citizens and shall not restrict such access except in accordance with law.’ Costa Rica has already amended its telecommunications legislation to treat internet access as a citizens’ right. The momentum of international human rights law points in the same direction, and India’s democratic credentials demand that it follow.

VII. Conclusion

India’s internet shutdown problem is, at its core, a constitutional problem. The judiciary’s refusal in Anuradha Bhasin to recognise internet access as an independent fundamental right — however understandable as procedural caution in 2020 — has had measurable consequences: an emboldened executive constitutionally unaccountable for its shutdown decisions, a legislative framework built on colonial foundations, and millions of citizens left without an effective remedy when they are cut off from modern public life.

The doctrinal path to recognition is already laid. Article 21’s expansive jurisprudence, the Puttaswamy right to privacy, the Kerala High Court’s forthright reasoning in Faheema Shirin, and India’s international human rights obligations converge to support a declaration that internet access is a positive fundamental right. What is missing is not new doctrine — it is judicial will and legislative seriousness. The reform agenda proposed in Part VI — judicial recognition, an independent oversight framework, and eventually a constitutional amendment — offers a graduated path forward.

India cannot simultaneously aspire to lead the world in digital governance and remain the shutdown capital among democracies. The Constitution does not permit this contradiction. If the right to life guarantees a dignified existence, and if dignified existence in 2025 requires meaningful participation in digital society, then the right to internet access is not a privilege the state may grant or withdraw at will. It is a fundamental entitlement the Constitution must protect. The question is no longer whether internet access deserves recognition — it is how long India can afford to deny it.

References

[1] Software Freedom Law Centre, Let the Net Work 2.0: Internet Shutdowns in India 2023–2024 (2025), https://sflc.in/internet-shutdowns.
[2] Access Now, Emboldened Offenders, Endangered Communities: Internet Shutdowns in 2024 (2025), https://www.accessnow.org/campaign/keepiton.
[3] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).
[4] Devdutta Mukhopadhyay, Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age, 9 Indian J. Const. L. 112 (2021).
[5] Freedom House, Freedom on the Net 2024: India Country Report (2024), https://freedomhouse.org/country/india/freedom-net/2024.
[6] Faheema Shirin R.K. v. State of Kerala, WP(C) No. 19716/2019 (Kerala H.C. Sept. 19, 2019) (India).
[7] Telecommunications Act, No. 44 of 2023, s. 20(2), India Code (2023).
[8] Telecommunications (Temporary Suspension of Services) Rules, 2024 (India).
[9] Foundation of Media Professionals v. Union Territory of Jammu & Kashmir, (2020) SCC OnLine SC 453 (India).
[10] Unni Krishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645 (India).
[11] Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37 (India).
[12] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
[13] A (Mother of X) v. State of Maharashtra, (2024) 6 SCC 327 (India). 
[14] U.N. Human Rights Council, Res. 47/16, The Promotion, Protection and Enjoyment of Human Rights on the Internet, U.N. Doc. A/HRC/RES/47/16 (July 26, 2021).
[15] Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (India).
[16] Yildirim v. Turkey, App. No. 3111/10, Eur. Ct. H.R. (Dec. 18, 2012).